Justice_ What's the Right Thing to Do_ - Michael Sandel [83]
Does this mean that colleges and universities are free to define their missions however they please, and that any admissions policy that fits the declared mission is fair? If so, what about the racially segregated campuses of the American South not long ago? As it happens, the University of Texas Law School had been at the center of an earlier constitutional challenge. In 1946, when the school was segregated, it denied admission to Heman Marion Sweatt on the grounds that the school did not admit blacks. His challenge led to a landmark U.S. Supreme Court case, Sweatt v. Painter (1950), which dealt a blow to segregation in higher education.
But if the only test of the fairness of an admissions policy is its fit with the school’s mission, then what was wrong with the argument the Texas Law School presented at the time? Its mission was to train lawyers for Texas law firms. Since Texas law firms did not hire blacks, the law school argued, its mission would not be served by admitting them.
You might argue that the University of Texas Law School, as a public institution, is constrained in its choice of mission to a greater extent than private universities. It is certainly true that the notable constitutional challenges to affirmative action in higher education have involved state universities—the University of California at Davis (in the Bakke case), the University of Texas (Hopwood), and the University of Michigan (Grutter). But since we are trying to determine the justice or injustice of using race—not its legality—the distinction between public and private universities is not decisive.
Private associations as well as public institutions can be criticized for injustice. Recall the sit-ins at lunch counters protesting racial discrimination in the segregated American South. The lunch counters were privately owned, but the racial discrimination they practiced was unjust nonetheless. (In fact, the 1964 Civil Rights Act made such discrimination illegal.)
Or consider the anti-Jewish quotas employed, formally or informally, by some Ivy League universities in the 1920s and ’30s. Were these quotas morally defensible simply because the universities were private, not public? In 1922, Harvard’s president, A. Lawrence Lowell, proposed a 12 percent limit on Jewish enrollment, in the name of reducing anti-Semitism. “The anti-Semitic feeling among students is increasing,” he said, “and it grows in proportion to the increase in the number of Jews.”12 In the 1930s, the director of admissions at Dartmouth wrote to an alumnus who had complained about the growing number of Jews on campus. “I am glad to have your comments on the Jewish problem,” the official wrote. “If we go beyond the 5 per cent or 6 per cent in the Class of 1938, I shall be grieved beyond words.” In 1945, the president of Dartmouth justified limits on Jewish enrollment by invoking the mission of the school: “Dartmouth is a Christian College founded for the Christianization of its students.”13
If, as the diversity rationale for affirmative action assumes, universities may set any admissions criteria that advance their mission as they define it, is it possible to condemn racist exclusion and anti-Semitic restrictions? Is there a principled distinction between the use of race to exclude people in the segregationist South and the use of race to include people in present-day affirmative action? The most obvious answer is that, in its segregationist days, the Texas law school used race as a badge of inferiority, whereas today’s racial preferences do not insult or stigmatize anyone. Hopwood considered her rejection unfair, but she cannot claim that it expresses hatred or contempt.
This is Dworkin’s answer. Segregation-era racial exclusion depended on “the despicable idea that one race may be inherently more worthy than another,” whereas affirmative action involves no such prejudice. It simply asserts that, given the importance of promoting diversity in key professions, being black or Hispanic “may be a socially useful trait.”14
Rejected applicants such as